1 Citing Noble v. Bosworth, 19 Pick. (Mass ) 314.

2 Rudisill v. Cross, 54 Ark. 519; Walker v Shackelford, 49 Ark. 563.

1 The seventeenth section. See post, Chap. XIV.

2 Warren v. Leland, 2 Barb. (N. Y.) 613; Smith v. Bryan, 5 Md. 141. This appears to have been the case in Teal v. Auty, 2 Brod. & B. 99. See Richards v. Burroughs, 62 Mich. 117; Taylor v. Mueller, 30 Minn. 343.

3 Bank of Lansingburgh v. Crary. 1 Barb. (N. Y.) 542. See Backen-stoss v. Stahler, 33 Pa. St. 251; Harbold v. Kuster, 44 Pa. St. 392, where it was also said, per Paige, J., that a mortgage of growing trees or grass, given by the owner in fee of the land of which they are parcel, does not work a severance of them from the land until the mortgage becomes absolute by the non-performance of the condition.

4 Per Dewey, J., delivering the opinion of the Supreme Court of Massachusetts in Miller v. Baker, 1 Met. 27; and see Penton v Robart, 2 East 88; Wyndham v. Way, 4 Taunt. 316; Smith v. Price, 39 111. 28. In incorporation with, the freehold, would seem to be properly regarded in the same light as cases of fixtures, which, as we have just seen, may be sold without writing.2

§ 237. Considering these vegetable products, however, as growing in the land, there is great conflict in the cases upon the question whether a contract for the sale of them shall be regarded as a contract for the sale of an interest in land. But upon a careful examination, the more approved and satisfactory rule seems to be that, if sold specifically, and to be by the terms of the contract delivered separately and as chattels, such a contract of sale is not affected by the fourth section of the statute, as amounting to a sale of any interest in the land; and that the rule is the same, when the transaction is of this kind, whether the product sold be trees, grass, and other spontaneous growth, or grain, vegetables, or other crops raised by periodical cultivation. This important principle requires to be fully developed and explained, and the authorities examined in detail and applied.

§ 238. In Emmerson v. Heelis in the Common Pleas, in 1809, the action was assumpsit for non-fulfilment of a verbal contract to remove certain lots of turnips, alleged to have been bought of the plaintiff by the defendant, and to bring back and lay on the ground a certain quantity of manure. The turnips were growing at the time, and were sold at auction by lots, each lot containing so many stitches or rows. The question directly before the court was upon the sufficiency of the auctioneer's memorandum of the purchase, and it was held to be sufficient. But Chief Justice Mansfield said, in passing: "Now as to this being an interest in land, we do not see how it can be distinguished from the case of hops;" 1 referring to Waddington v. Bristow, which was decided in the Common Pleas in 1801. Bearing in mind that this observation was gratuitous,there being a sufficient memorandum produced, and also that the circumstance that the turnips were sold as to be severed and removed from the land does not appear to have been noticed by the Chief Justice, let us refer to the case he alludes to as indistinguishable from that before him. In Waddington v. Bristow, the action was upon a verbal agreement for the purchase of all the growth of hops on a piece of land, at a certain rate per hundred-weight, to be in pockets, and to be delivered at a place named within a reasonable time after the hops were picked and dried. At the time of the contract, the hops, which were the subject of it, were not in existence, nothing but the root of the plant being in the ground. The question was whether it was a sale of goods, wares, and merchandise, so as to be exempted under an exception in the Stamp Act. All the judges, except Chambre, J., confined themselves to deciding that question in the negative; he, however, went further, and stated his opinion that the contract gave an interest to the vendee in the produce of the vendor's land; but neither he nor the others made any allusion to the Statute of Frauds.2 The point before the court was determined without any reference to the statute, and unless the hops were necessarily an interest in land because they were not goods, wares, and merchandise, the case affords no authority for the decision in Emmerson v. Heelis.

Lee v. Risdon, 7 Taunt. 191, Gibbs, C. J., discussing the more general question of fixtures, says that trees in a nursery-ground are a part of the freehold until severed; but this must mean as between the heir and the executor, or where the entire property in the land and the trees growing thereon are united in the same person. See Miller v. Baker, supra. It is apprehended, however, that if a nurseryman having trees lodged in the land should afterwards purchase the land, the trees would not thereby be made part of the realty. 1 Ante, § 234.

§ 239. In Warwick v. Bruce, decided in the King's Bench in 1813, a similar question arose. The defendant verbally agreed to sell to the plaintiff all the potatoes then growing on three acres, at so much per acre, to be dug up and carried away by the plaintiff; the plaintiff paid 40 on the agreement, and dug up a part, and carried away a part of those dug, but was prevented by the defendant from digging and carrying away the remainder. It was held, that he was entitled to recover for this breach, the oral agreement being not within the fourth section of the Statute of Frauds. Lord Ellenborough said: "Here is a contract for the sale of potatoes at so much per acre; the potatoes are the subject-matter of sale, and whether at the time of sale they were covered with earth in the field, or in a box, still it was a sale of a mere chattel."1

1 Emmerson v. Heelis, 2 Taunt. 38; doubted in Evans v. Roberts, 5 Barn. & C. 829. See post, § 240.

2 Waddington v. Bristow, 2 Bos. & P. 452.

§ 240. Evans v. Roberts, decided in the King's Bench in 1826, was an action on the defendant's verbal agreement to purchase of the plaintiff a cover of potatoes then in the ground, to be turned up by the plaintiff, at the price of 5, of which the defendant paid one shilling earnest. A verdict had been directed below for the plaintiff, and a rule to set it aside was now discharged by the court. Mr. Justice Bay ley said: " The effect of the contract was to give to the buyer a right to all the potatoes which a given quantity of land should produce, but not to give him any right to the possession of the land; he was merely to have the potatoes delivered to him when their growth was complete." He admitted that Emmerson v. Heelis was against him, but rejected that decision as not upon a point before the court, and as founded upon a misconception of Waddington v. Bristow. He then proceeds to say: "It has been insisted that the right to have the potatoes remain in the ground is an interest in the land; but a party entitled to emblements has the same right, and yet he is not by virtue of that right considered to have any interest in the land." Holroyd, J., said: "This is to be considered a contract for the sale of goods and chattels to be delivered at a future period. Although the vendee might have an incidental right, by virtue of his contract, to some benefit from the land while the potatoes were arriving at maturity, yet I think he had not an interest in the land within the meaning of the statute. He clearly had no interest so as to entitle him to the possession of the land for a period, however limited, for he was not to raise the potatoes. Besides, this is not a contract for the sale of the produce of any specific part of the land, but of the produce of a cover of land. The plaintiff did not acquire by the contract an interest in any specific portion of the land. The contract only binds the vendor to sell and deliver the potatoes at a future time, at the request of the buyer, and he was to take them away." And he concludes with the remark that the contract was "to render what afterwards would become a chattel." Lord Littledale's remarks are too valuable to be omitted. "I am of opinion," says he, "that a sale of the produce of the land, whether it be in a state of maturity or not, provided it be in actual existence at the time of the contract, is not a sale of lands, tenements, or hereditaments, or any interest in or concerning them, within the meaning of the fourth section of the Statute of Frauds. The words'lands, tenements, and hereditaments' in that section appear to me to have been used by the legislature to denote a fee-simple, and the words 'any interest in or concerning them 'were used to denote a chattel interest, or some interest less than the fee-simple. In the fifth section, . . . the words' lands and tenements' are clearly used to denote a fee-simple and do not extend to leaseholds. The legislature contemplated an interest in land which might be made the subject of sale. I think, therefore, they must have contemplated the sale of an interest which would entitle the vendee either to the reversion or to the present possession of the land. Now this contract only gives to the vendee an interest in that growing produce of the land which constituted its annual profit. Such an interest does not constitute part of the realty."1